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Monday, 7 February 2011

Human Rights Quagmire

Policy Exchange have released a paper entitled "Bringing Rights Back Home" with a forward from Lord Hoffmann. The cut and thrust of their suggestion is that the UK government re-assess the relationship between domestic courts and the ECtHR, giving serious consideration to complete withdrawal from the latter. This would effectively reverse the obligation the UK signed up to in 1950 to allow Strasbourg to supervise its compliance with the European Convention on Human Rights. The forward comes from the enigmatic Lord Hoffmann who endorses considerable substance of the report. John Morgan has written an interesting critique of the report which is well worth a read. I sympathise with some of the sentiment on the specifics, but I fear the public debate about this has been derailed from the real issues.

The problem is that the prisoner voting debacle (alongside the Daily-Mail-esque responses to other human rights judgements) point the blame at the right institution but for the wrong reasons. The Hirst v UK and more recent Greens and MT v UK cases have instilled a lot of anger among people who clearly don't understand and/or value liberty and democracy. On the substance, the ECtHR and those anti-democrats are on two sides of the same coin: either you believe in universal suffrage or you don't and neither have adopted that standard to its logical extent. All adults should have full voting rights in elections (even prisoners) for one simple reason: if a state has authority to incarcerate you, that must be tempered by your right to choose those who make the laws which exercise that authority.

But let's not get distracted by the specifics. If Lord Hoffmann and the report itself are guilty of one thing, it is undermining their legitimate arguments about the competence creep of the European institutions by fudging it with the substance of the actual decisions made. To his credit, Hoffmann pains to point out that "the brief list of human rights in the 1950 European Convention, which now forms part of our own law, is, in general terms, admirable."

He goes on to argue that the "high-minded generalities" behind interpretation of the ECHR ultimately subverts the values by which member-states are governed. This, he believes, leads the ECtHR to micromanage unjustly the laws of member-states. With the greatest of respect he's got it the wrong way around.

The term "margin of appreciation" is often bandied about by European apologists as a defence for what essentially amounts to supranational judicial diktat. The harsh reality is that member-states have opted into something that shows little to no respect for national sovereignty. A new legal order exists and the degree of deference to national courts and legislatures is lamentable.

The European institutions are a bit like the grumpy neighbour who puts his garden fork through your football for kicking it over the hedge. They can't stop you playing football but they just can't resist damaging your property and grassing you up to your parents. Sure, they can't control the detail of national legislation and sure the national government can ignore their decisions (incurring huge compensation claims in the process). But that they can arrogate any sort of jurisdiction at all into the particulars of constitutional matters of a supposedly sovereign state simply cannot be satisfactory.

So here's my simple three-step solution. Unfortunately it's not going to be in-vogue. This issue is so horrifically bipolar that out-of-the-box alternatives just can't command any sort of popular support.

Withdraw completely from all European institutions, including the supervisory jurisdiction of the ECtHR

Codify the UK constitution, embodying the substance of the ECHR as absolute

Give UK courts and UK courts alone the power to interpret and apply the constitutional law

This kills to birds with one stone. For one, it would give the sovereign state unqualified control over its own constitution and destiny. This should appease those who feel the constitution is being moulded by those other than the people it affects. Secondly, and more importantly, the content of the constitution would make it much more difficult for those who have no respect for liberty and rights to subvert it. They would no longer have the excuse to fudge the constitutional merits with the constitutional authority.

No one has the courage to do this, though. The problem is that the UK legal order are too attached to our incoherent ad-hoc constitutional structure. We're too at ease upholding legal principles not because they are inherently good, logical and necessary but for another reason entirely. We uphold them because of the post hoc rationalising of judicial and political actors who vaguely thought something was right at a largely arbitrary point in time in the past. Its flexibility is undeniable and at times it has proved an asset. Yet it has come at the expense of an informed and considered discourse on freedom and democracy.

Only an unquestionably and purely sovereign constitution can solve that. In our ignorance we argue over the symptoms and miss the real problem.